Index Abandoned claims judgment on, principally concerned with costs, 12-13, 33-44 whether cost reduction appropriate because of, 125 Access to the premises AS 4917-2003, 9-10 Acts Interpretation Act 1954 (Qld) s 32C, whether detached dwelling includes the plural, 207-212 Adjudication determinations basic and essential requirements of, 390-405 bona fide attempts, 346-347 certificates for, 289-311 denial of natural justice due to lack of notice, 191, 199-203 grounds on which purported determination void, 289-311 judicial review of restricted after Brodyn, 328-352 jurisdiction to value progress claims, 71-72, 79 jurisdictional errors of law or breach or natural justice, 273-288 leave to reargue Brodyn sought, 379, 400 matters to be considered by adjudicator, 343-345 policy shifts in applications for urgent relief and judicial review, 86-89 statutory demands, when special circumstances or compelling reasons, 88-89 submissions to an adjudicator, 200-202 validity of process, regarding payment claims, 361-363 whether attempt made in good faith to exercise powers given by the Act, 383-389 whether determination in breach of the Act is unlawful, 390-405 whether interim decisions, 266-272 whether open to judicial review, 273-288 Administration, companies in interim nature of adjudication determinations and, 266-272 proof of debt and, 443-453 stay of proceedings and, 142-149 Appeals, see also Leave to appeal Commercial Arbitration Act 1985 (WA), 219-235 prejudice and, 32-33 Arbitration, see also Referees; Statutory demands appointing authority, 263 approaches for improvement of, 166-183 arbitral seat, 263 choosing an institution, 261 conciliation before, 170-172 costs for failed proceedings, 125-141 (2005) 21 BCL 487 487
decision made on a basis not put or pleaded by the parties, 150-159 elements of an agreement to arbitrate, 260-265 extension of certain times in arbitration clauses, 61-70 international, 174 language of, 264 last offer arbitration, 181 leave to appeal from arbitrator s award, 213-218 legal principles to be followed, 219-235 manifest error on face of award, 213-218 party to in administration, 142-149 proceedings as proceedings in court, 142-149 right to terminate, 106-124 settlement with no figure, 181 single issue arbitration, 180-181 standard clauses, 173-174 whether reasonable to determine that not in client s best interests for arbitration to continue, 106-124 Arbitrators choosing them, 263 claim for misconduct against, when decision made on a basis not put or pleaded by the parties, 150-159 lay, approach to be taken on legal issues determined by, 219-235 liability for costs of failed arbitration, 125-126, 133-136 AS 4000-1997 liquidated damages clauses, 415 Standard Suite of Contracts based on, 6-11 AS 4901-1998 Standard Suite of Contracts based on AS 4000-1997 completed, 8 AS 4916-2002 Standard Suite of Contracts based on AS 4000-1997 completed, 6-11 AS 4917-2003 Standard Suite of Contracts based on AS 4000-1997 completed, 7-8 AS 4920-2003 role of principal under, 11 AS 4921 delay and performance provisions under, 11 Assets, see also Financing arrangements asset maintenance and services contracts standards suite, 6-11 Mareva order due to limited assets of the defendant in Australia, 236-241 Builder s side deeds (tripartite agreements) whether construction contract forms part of loan agreement, 71-79 Building and Construction Industry Security of Payment Act 1999 (NSW) adjudication determination, ability to seek judicial review of, 289-311 adjudication determination, amount of progress payment not based on contract, 273-288 488 (2005) 21 BCL 487
Index adjudication determination, policy shifts in, 86-89 adjudication determination, whether interim decision, 266-272 applications for urgent relief and judicial review by aggrieved parties, 86-89 basic and essential requirements, 343-347, 351, 390-405 concurrency of proceedings, 189-190, 437-442 delay damages and, 364-382, 390-405 forms part of, wording in s 7(2)(a), 71-79, 191, 196-199 injunction for payment claim and adjudication application, 361-363 injunctions and stays, 184-188 interim nature of relief, 184-188 judicial review of adjudication decisions restricted after Brodyn, 328-352 Mareva orders, 236-241 prohibition on defences and cross claims under s 15 of the, 425-427 repudiation of contract, and debts under, 443-453 s 13(4)(b), requirement that work be carried out in previous 12 months, 101-105 s 22, 402-403 shortcomings in, 327 ss 9 and 10, valuation of construction work according to terms of contract, 71-72 whether attempt made in good faith by adjudicator to exercise powers given by the Act, 383-389 Building contracts, see Contracts Certiorari adjudication determination, Brodyn and, 328, 334-335, 340-341, 351 adjudication determination, leave to reargue Brodyn sought, 379, 400 sought after determination was not in accordance with contract, 273-288 whether available to quash adjudicator s determination, 289-311 Clerical errors, see Slip rules Commencement contracts whether limited terms contract included in, 12, 17-19, 30-31 Commercial Arbitration Act 1984 (NSW) alternative dispute resolution and, 172-173 leave to appeal from arbitrator s award, 213-218 s 42(1), 150-159 s 48, 61-70 Commercial Arbitration Act 1984 (Vic) s 36, costs of arbitration, 138-141 s 42, 125-141 s 51, 134-135, 140 Commercial Arbitration Act 1985 (WA) S 38, 219-235 Commercial properties, see also Construction work assignment of ongoing rights under building contracts, 248-259 Completion liquidated damages clauses to maximise recovery, 412-424 (2005) 21 BCL 487 489
whether had occurred by date of completion, 454-478 Conciliation, see Arbitration Concurrency of proceedings should statutory proceedings be completed before court proceedings are commenced, 189-190, 437-442 Construction contracts, see Contracts Construction Management Trade Contract - General Conditions, see AS 4917-2003 Construction work builder s suspension of works, 219-235 defects not minor so no practical completion of work, 213-218 requirement that work be carried out in previous 12 months for payment claims, 101-105 Standard Suite of Contracts based on AS 4000-1997, 6-11 valuation of, according to contract, 71-72 whether delay damages are for construction work or related goods and services, 364-382, 390-405 Contracts, see also Commencement contracts; Limited terms contracts; Liquidated damages adjudication determination of amount of progress payment not based on contract, 273, 282-284 asset maintenance and services, 6-11 assignment of ongoing rights under, 248-259 Australian Standard, liquidated damages clause in, 422-423 commencement of work prior to formal contract, 12 construction of 10 houses as a regulated contract, 207-212 dispute over existence of contract, following from letter of intent, 12-45 implied by conduct of parties, 430-436 incorporating ADR into, 169-170, 173-174 indivisible and not severable, progress payments and, 46-60 poor drafting of, 5 power balance from principals to contractors after Brodyn, 328-352 reconciliation with statutory progress payments, 327 repudiatory conduct, 46-47 time clauses in, 150, 152-154 unrealistic deadlines, 167 valuation of construction work according to terms of, 71-72 variations dealt with in, 385-387 whether concluded or not, 361-363 whether construction contract forms part of loan agreement, 71-79 whether wrongly repudiated, 430-436 Corporations misleading and deceptive conduct, while acting honestly, 353-360 Corporations Act 2001 (Cth) s 440D, arbitration proceedings as proceedings in court, 142-149 set-off against judgment debt under s 553C of, 443-453 statutory demands, 349-350 490 (2005) 21 BCL 487
Index Correspondence, see Documentation Costs, see also Security for costs abandoned claims and, 33-44 amount of security for, 149 delay costs as contractual compensation, 165 leave to proceed with application for security of, 147-149 liability for costs of failed arbitration, 125-141 Court, jurisdiction of judicial resistance to ADR, 172 Court, proceedings in no generally-applicable criteria for categorising a body as a court, 142-149 Credibility of witnesses conclusions based on findings about, 90 Damages, see also Delay damages; Liquidated damages general damages, when liquidated damages claims fail, 424 partially completed dwellings, and entire contracts, 46, 53-55 Debt, see also Judgment debt bank guarantee as security for, 443-453 how proof of is dealt with by administrator, 443-453 Deceptive conduct, see Misleading and deceptive conduct Deed of Company Arrangements (DCA) administration under, 443-453 Defective building work AS 4917-2003, 10 defects not minor so no practical completion of work, 213-218 multiple minor defects, at date of completion, 454-478 protection of purchasers where latent defects arise, 248-259 Defence prohibition under s 15 of the Security of Payment Act, 425-427 refusal of referee to allow amendment to, 454-478 Delay damages AS 4917-2003, 9 delay costs as contractual compensation, 165 FIDIC s conditions of contract, 415 interest and, 390-405 unreasonable application of liquidated damages, 167 whether can be included in payment claim, 364-382, 390-405 whether for construction work or related goods and services, 364-382, 390-405 Delinquent conduct arbitration costs and, 131-133 Denial of justice adjudication determination, failed to consider submission on defects, 289-311 adjudication determination, of amount of progress payment not based on contract, 273-288 (2005) 21 BCL 487 491
adjudication determination, review of, 328, 334, 342, 347 adjudicator s obligation to give notice of intention to rely upon a statutory declaration and, 191, 199-203 Detached dwelling whether it includes the plural, 207-212 Determinations, see Adjudication determinations Disclaimers significance in provision of misleading information, 353-360 Discretion, exercise of adjudication determinations and, 289-311 Dispute resolution, see also Arbitration; Mediation approaches for improvement of, 166-183 evidence of relevance of claimed jurisdictional error to particular determination needed, 247 poor quality of, 5 tiered system of, 61-64 District Court concurrency with statutory proceedings, 189-190, 437-442 referral to referee for report under 1973 Rules, 46 Documentation, see also Correspondence ensuring completeness of, 167 evidence of relevance of claimed jurisdictional error to particular determination needed, 247 preparation and presentation of disputes, 411 Domestic Building Contracts Act 2000 (Qld) regulated contracts and, 207-212 Domestic building work, see also Construction work defined, 208-209 licences and, 289, 308-310 partially completed dwellings, and entire contracts, 46-60 whether detached dwelling includes the plural, 207-212 Dwellings, see Domestic building work Enforcement, see Judgment debt England cases on protection of purchasers of commercial properties, 249-254 cases where the grant of stay would prevent injustice, 269-271 Entire contracts partially completed dwellings and, 46-60 EOT clauses, see Time clauses in contracts Equipment supply Standard Suite of Contracts based on AS 4000-1997, 6 Equitable relief whether unmeritorious conduct disentitles plaintiff to, 91 Error of law, see also Jurisdictional error jurisdictional v non-jurisdictional, 329, 342 manifest error, defined, 219, 225 492 (2005) 21 BCL 487
Index manifest error, regarding certification of drawings, 213-218 v wrong findings of facts, 219-235 Estoppel prohibition on defences under s 15 of the Security of Payment Act, 425-427 promissory, in share sale agreement, 90-100 Expert testimony in dispute resolution, 174, 178 when not cross-examined, 454-478 Extension of time clauses, see Time clauses in contracts Fees refunded due to misconduct by arbitrators, 125-126 Financing arrangements, see also Assets financial problems of subcontractors, 168 secondary funding, 220-221, 226-227 whether construction contract forms part of loan agreement, 71-72, 77-79 Formal contracts, see Contracts Forms part of, wording in builder s side deeds progress claim entitlements and, 71-79 serious question to be tried regarding, 191, 196-199 Fourth class contracts, see Limited terms contract Freezing orders, see Mareva (freezing) orders Global claims reasonable cost of work, and apportionment of losses, 85 Good faith whether attempt made in by adjudicator to exercise powers given by the Act, 383-389 Governing substantive law arbitration and, 263-264 Hardship, see Undue hardship Home Building Act 1989 (NSW) licences under, 289, 308-310 Honest and reasonable conduct whether can be judged as misleading and deceptive conduct, 353-360 Immoral conduct, see Unmeritorious or immoral conduct Immunity, see Sovereign immunity In kind payments as part of contract payment, 430-436 Inclusion, see Forms part of Indemnity costs arbitration proceedings, 125, 128-130 no entitlement where one defendant reasonably rejects compromise, 454-478 Indivisible contracts progress payments and, 46-60 (2005) 21 BCL 487 493
Injunctions security of payment process, 184-188 Insolvency statutory set-off for, 350 stays of judgment and, 266-272 Instalments, see Progress payments Institute of Arbitrators & Mediators Australia recommended dispute resolution clauses, 173-174 Instructions prompt approvals of, 167 Insurance AS 4917-2003, 10 Interest delay damages and, 390-405 Interim awards leave to appeal against, 219-235 security of payment process, 184-188 statutory right to progress payments, 330 whether adjudication determinations are interim decisions, 266-272 Judgment debt adjudication certificates as, 289-311 principles applied on application for stay of, 266-272 relief to be sought from court that issued the judgment, 86, 88 set-off against, under s553c of Corporations Act, 443-453 staying enforcement of, if greater claims, 310-311 staying enforcement of, under Security of Payment Act, 187-188 Judgment on abandoned claims costs and, 12-13, 33-44 Judicial review adjudication determinations, grounds for, 301-306 adjudication determinations, restricted after Brodyn, 328-352 adjudication determinations, whether open to, 273-288 narrowing grounds for eligibility for, 86 Jurisdictional error adjudication determination of amount of progress payment not based on contract, 273-288 adjudication determinations, review of, 328, 342 evidence of relevance to particular determination needed, 247 Justice, denial of, see Denial of justice Leave to continue arbitration, 142-149 to proceed with application for security costs, 142-149 Leave to appeal from arbitrator s award, 213-218 494 (2005) 21 BCL 487
what constitutes an error of law, 219-235 Letters of intent dispute over existence of contract, and quantum meruit claim, 12, 15-18 Liability, see Limitation of liability Licence effect of absence of, 289, 308-310 Limitation of liability AS 4917-2003, 10-11 Limited terms contracts (fourth class contracts) whether come into existence, and whether included in commencement contract, 12-13, 20-33 Liquidated damages AS 4917-2003, 9 calculation of, 421-422 drafting clauses, 419-424 enforcing clauses, 417 reasons for, 412 successful challenges to clauses, 424 v penalties, 413-419, 424 whether term part of contract, 430-436 Litigation for dispute resolution, 168-169 Loan agreements whether construction contract forms part of, 71-72, 77-79 Management Standard Suite of Contracts based on AS 4000-1997, 6 Manifest error of law, see Error of law Mareva (freezing) orders limited to amount determined by adjudicator, 236-241 Mediation approaches for improvement of, 166-183 conciliation before arbitration, 170-172 standard clauses, 174 streetwise parties and, 181-183 Misconduct of arbitrators decision made on a basis not put or pleaded by the parties, 150-159 definition of, 154 refund of fees after, 125-126, 133-136 Misleading and deceptive conduct Trade Practices Act 1974, relief granted according to, 90-91 Trade Practices Act 1974, while acting honestly, 353-360 Natural justice, see Denial of justice Officer defendants liability for costs, 141 Index (2005) 21 BCL 487 495
Party and party basis for costs arbitration proceedings, 125, 128-130 Payment claims, see also Progress payments adjudication determination, and validity of, 289-311, 361-363 adjudication determination of amount of progress payment not based on contract, 273-288 AS 4917-2003, 10 interim nature of adjudication determinations, 266-272 reasons not raised in payment schedules can t be raised in adjudication response, 383-386 requirement that work be carried out in previous 12 months, 101-105 requirements for valid, 345-346 whether delay damages can be included in, 364-382, 390-405 Payments whether payment in kind should be worked out as a percentage, 430-436 Penalties v liquidated damages, 413-419, 424 Performance defined in AS 4917-2003, 9 Key Performance Indicators (KPIs) in liquidated damages clauses, 423 Premises, access to, see Access to the premises Proceedings in court arbitration proceedings as, 142-149 Progress payments adjudication determination, and claimed defects, 289-311 adjudication determination, Brodyn and, 338, 351 adjudicators jurisdiction to value, differently to terms of contract, 71-72, 79 non-payment of, 219-235 partially completed dwellings, and entire contracts, 46, 51-52, 57-59 reconciliation with contractual provisions, 327 statutory provisions, 102-104 whether delay damages can be included in, 390-405 Promissory estoppel, see Estoppel Purchasers assignment of ongoing contractual rights under building contracts, 248-259 reliance on misleading survey information, 356-357 Quantum meruit claims dispute over existence of formal contract, following from letter of intent, 12-45 partially completed dwellings and, 46-60 whether can be made for work carried out by another, 430-436 Reasonable conduct, see Honest and reasonable conduct Referees whether compelled to accept evidence not subject to cross-examination, 454-478 Regulated contracts construction of 10 houses as a regulated contract, 207-212 496 (2005) 21 BCL 487
Index Relief, see Equitable relief; Urgent relief Repairs AS 4917-2003, 10 Repudiatory conduct progress payments and, 46-60 whether acceptance of repudiation existed, 91 Residential building work, see Domestic building work Retention money, see Securities Review, see Judicial review Rights of purchasers, see Purchasers Risk allocation appropriate allocation of, 167 Securities (retention money) return of, when no immediate threat to call upon the instrument, 428-429 Security for costs amount of, for claim and cross-claim, 149 leave to proceed with application for, 147-149 Security of Payment Act, see Building and Construction Industry Security of Payment Act 1999 (NSW) Services contracts asset maintenance and services standards suite completed, 6-11 Severable contracts progress payments and, 46-60 Side deeds, see Builder s side deeds (tripartite agreements) Slip rules applicability due to clerical error, 191, 193-196 Solicitor and client basis for costs arbitration proceedings, 125, 128-130 Sovereign immunity agreement to arbitrate and, 265 Standards Australia, see AS... Statutory demands adjudication determinations, when special circumstances or compelling reasons, 88-89 challenging security of payment adjudications, 329-331 concurrency of proceedings, 189-190, 437-442 progress payments, 102-104 whether vexatious or oppressive, 189-190, 437-442 Stay of judgment debt if greater claims, 310-311 principles applied on application for, 266-272 whether other relief available, 347-349 Stay of proceedings company under administration, 144-147 security of payment process, 184-188 (2005) 21 BCL 487 497
Subcontractors financial problems of, 168 secondary funding and, 221-222, 226-227 Summary judgment return of security, when no immediate threat to call upon the instrument, 428-429 Tenders for construction works dispute over existence of contract, and quantum meruit claim, 12-45 open competitive tendering, 166-167 Termination of contract construction of clauses in contract, and repudiation, 46-48, 58 liquidated damages clauses to maximise recovery, 418-419 Time clauses in contracts arbitration decision made on basis of, although not put or pleaded, 150, 152-154 extension of times in arbitration clauses, 61-70 liquidated damages, and EOT clauses, 420-421 Trade Contracts, see AS 4917-2003 Trade Practices Act 1974 (Cth) s 52, misleading and deceptive conduct, in promise to complete, 90-91 s 52, misleading and deceptive conduct, while acting honestly, 353-360 Trial conduct which prolongs, 130-131 Tripartite agreements, see Builder s side deeds (tripartite agreements) Undue hardship extension of times in arbitration clauses and, 66, 70 Unmeritorious or immoral conduct does not disentitle a plaintiff from equitable relief, 90 Urgent relief what is available, and when can it be sought, 86-88 Utility of appeal arbitration proceedings, 116-117 Valuation of construction work, according to contract, 71-72 Variations AS 4917-2003, 10 dealt with in contract, 385-387 liquidated damages and, 418 Vendors misrepresentations by, 355-356 recovery under narrow or broad basis, 257 warranties from, 248-249, 256-258 Warranties from vendors of commercial properties, 248-249, 256-258 Writ of certiorari, see Certiorari 498 (2005) 21 BCL 487